1.

Counsel for the appellant has filed objections to

the application filed under Order 41 Rule 27 CPC filed by the

learned counsel for the respondent.

2.

Heard and perused the records.

3.

Present appeal is directed against the judgment

and decree passed in OS No.1319/2004, whereby the suit of

3

the plaintiff was dismissed by judgment dated 6.12.2008 on

the file of the IX Addl. City Civil and Sessions Judge,

Bengaluru.

4.

Parties are referred to as plaintiff and defendants

for the sake of convenience, as per their original rankings

before the Trial Court.

5.

Plaintiff is a Proprietor of a business concern

namely 'Dinesh Fabilone'. His mother Leeladevi, was holding

a shop at premises bearing No.6, Ramesh market, Avenue

Road, Bengaluru, during the year 1993. Second defendant

approached her and offered to take shop on lease. When she

refused to lease the shop, the second defendant prevailed

upon her to part with the shop. He has informed her that he

is taking his nephew, the third respondent, as a partner to

run the shop. Defendant Nos. 2 & 3 commenced the

business in the name and style of 8Kamal Syndicate.9

Plaintiffs mother never participated in the business of the 2nd

and 3^rd defendant and never paid rents to her. Hence, the

plaintiff9s mother had to pay rents to the land lord from her

4

pocket. Second defendant continued the business in the said

shop till Nov. 1985 and ultimately, quit the business and

vacated the shop.

6.

After receipt of the keys of the shop, plaintiff's

mother took possession and she came to know that second

and third defendants have made several credit purchases and

had not paid their creditors and there are lot of dues. First

defendant issued a notice to 2^nd and 3^rd defendant calling

upon them to pay arrears of tax totalling to a sum of

Rs.2,20,487/- including Rs.49,492/- as the actual tax for the

assessment year 1983-84. When the 2^nd and 3^rd defendant

were not able to be located, the staff of the 1^st defendant

visited the plaintiff and demanded her to clear the liability of

2^nd and 3^rd defendant. Plaintiff was required to pay a sum

of Rs.49,492/- and therefore, plaintiff issued two cheques

dated 3.1.2001 even though he had no liability to pay. The

plaintiff has failed to refund the said sum of Rs.49,492/- with

interest.

5

7.

Upon service of suit summons, the 1^st defendant

appeared before the court and resisted the suit of the

plaintiff by filing a detailed written statement denying the

plaint averments in toto. The written statement averments

also reveal that no notice under Section 80 of CPC was issued

before filing of the suit and therefore, the suit is not

maintainable and sought for dismissal of the suit. 2^nd and

3^rd defendant remained exparte.

8.

Based on the rival contentions of the parties,

Trial Court raised following issues:

(1) Whether the plaintiff proves that he is

entitled to refund an amount of Rs.49,492/-?

2) To what decree or order?

9.

In order to prove the case of the plaintiff, plaintiff

got examined as PW-1 and relied on 8 documentary evidence

which were exhibited and marked as Exs.P1 to P8. Plaintiff

was not even cross examined by the defendant. 1^st

defendant after filing the written statement did not choose to

contest the suit further. There is no evidence placed on

6

behalf of the defendant nor there is any oral and

documentary evidence placed on behalf of the defendant, the

learned Trial Judge heard the arguments of the plaintiff and

sought for dismissal of the suit.

10.

Being aggrieved by the same, the plaintiff is

before this court in this appeal challenging the validity of the

judgment and decree passed in OS No.1319/2004 on the

following grounds:

That the dismissal of the suit, without considering

the documents submitted and the averments

made, and without the application of judicial mind

is bad in law.

That the trail court has been in bias, in dismissing

the suit, as the first respondent is a state

functionary.

That, the trail court has total